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CASE NO.:

Appeal (civil) 9876 of 1995

PETITIONER:

HAMEED JOHARAN (D) AND ORS.

RESPONDENT:

ABDUL SALAM (D) BY LRS. AND ORS.

DATE OF JUDGMENT: 13/08/2001

BENCH:

A.P. MISRA & UMESH C. BANERJEE

JUDGMENT:

JUDGMENT

2001 Supp(1) SCR 469

The Judgment of the Court was delivered by

BANERJEE. J. Availability of the plea of limitation in the matter of

execution of decree has been the key issue in this appeal. The word

'execution' stands derived from the Latin "ex sequi," meaning, to follow

out, follow to the end, or perform, and equivalent to the French executor",

so that, when used in their proper sense, all three convey the meaning of

carrying out some act or course of conduct to its completion (vide vol. 33-

Corpus Juris Scundum).

Lord Denning in Re Overseas Aviation Engineering (G.B) Ltd. : (L.R. 1963 :

Ch. 24) has attributed a meaning to the word 'execution' as the process for

enforcing or giving effect to the judgment of the court and stated :

"The word "execution" is not defined in the Act. It is, of course, a word

familiar to lawyers. "Execution" means, quite simply, the process for

enforcing or giving effect to the judgment of the court : and it is

"completed" when the judgment creditor gets the money or other thing

awarded to him by the judgment. That this is the meaning is seen by

reference to that valuable old book Rastill Termes de la Ley, where it is

stated : "Execution is, "where Judgment is given in any Action, that the

plaintiff shall "recover the land, debt, or damages, as the case is; and

when any "Writ is awarded to put him in Possession, or to do any other

"thing whereby the plaintiff should the better be satisfied his debt "or

damages, that is called a writ of execution; and when he hath "the

possession of the land, or is paid the debt or damages, or "hath the body

of defendant awarded to prison, then he hath "execution " And the same

meaning is to be found in Blackman v. Fysh. [(1892) 3 Ch. 209, 217, C.A],

when Kekewich. J. said that execution means the "process of law for the

enforcement of a judgment creditor's right "and in order to give effect to

that right." In cases when execution was had by means of a common law writ,

such as fieri facias or elegit, it was legal execution : when it was had by

means of an equitable remedy, such as the appointment of a receiver, then

it was equitable execution. But in either case it was "execution" because

it was the process for enforcing or giving effect to the judgment of the

court."

Before adverting to factual aspect of the matter, a brief re-capitulation

of the various periods of limitation as prescribed under the Limitation Act

as engrafted in the Statute Book from time to time would be convenient. Law

of Limitation in India, as a matter of fact, was introduced for the first

time in 1859 being revised in 1871, 1877 and it is only thereafter, the

Limitation Act of 1908 was enacted and was in force for more than half a

century till replaced by the present Act of 1963 (see in this context B.B.

Mitra : the Limitation Act 20th Ed.).

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Presently, Article 136 of the Limitation Act 1963, prescribes a period of

twelve years for the execution of a decree other than a decree granting a

mandatory injunction or order of any civil court. As regards the time from

which the period of twelve years ought to commence, the statute has been

rather specific in recording that the period would commence from the date

of the decree or order when the same becomes enforceable. We need not go

into the other situations as envisaged in the statute for the present

purpose, save what is noticed above. To put it shortly, it therefore,

appears that a twelve year period certain has been the legislative choice

in the matter of execution of a decree. Be it noted that corresponding

provisions in the Act of 1908 were in Articles 182 and 183 and as regards

the statute of 1871 and 1877, the corresponding provisions were contained

in Articles 167, 168, 169, and 179, 180 respectively. Significantly,

Article 182 of the Limitation Act of 1908 provided a period of three years

for the execution of decree. Be it clarified that since the reference to

the 1908 Act would be merely academic, we refrain ourselves from recording

the details pertaining to Article 182 save what is noted hereinbefore. It

is in this context, however, the Report of the Law Commission on the Act of

1963 assumes some importance, as regards the question of limitation and

true purport of Article 136. Before elaborating any further, it would be

convenient to note the Report of the Law Commission which reads as below:

"170. Article 182 has been a very fruitful source of litigation and is a

weapon in the hands of both the dishonest decree-holder and the dishonest

judgment debtor. It has given rise to innumerable decisions. The commentary

in Rustomji's Limitation Act (5th Edn.) on this article itself covers

nearly 200 pages. In our opinion the maximum period of limitation for the

execution of a decree or order of any civil court should be 12 years from

the date when the decree or order became enforceable (which is usually the

date of decree) or where the decree or subsequent order directs any payment

of money or the delivery of any property to be made at a certain date or at

recurring periods, the date of the default in making the payment or

delivery in respect of which the applicant seeks to execute the decree.

There is, therefore, no need for a provision compelling the decree-holder

to keep the decree alive by making an application every three years. There

exists a provision already in section 48 of the Civil Procedure Code that a

decree ceases to be enforceable after a period of 12 years. In England

also, the time fixed for enforcing a judgment is 12 years. Either the

decree-holder succeeds in realising his decree within this period or he

fails and there should be no provision enabling the execution of a decree

after that period. To this provision an exception will have to be made to

the effect that the court may order the execution of a decree upon an

application presented after the expiration of the period of 12 years, where

the judgment-debtor has, by fraud or force, prevented the execution of the

decree at some time within the twelve years immediately preceding the date

of the application. Section 48 of the Civil Procedure Code may be deleted

and its provisions may be incorporated in this Act. Article 183 should be

deleted...."

In pursuance of the aforesaid recommendation, the present article has

enacted in place of articles 182 and 183 of the 1908 Act. Section 48, Code

of Civil Procedure 1908 has been repealed".

The material facts pertaining to the issue however may be delved into at

this juncture.

The factual score records that a preliminary decree for partition was

passed on 8.6.1969 and a final decree thereon was passed on 20.11.1970. The

suit being a suit for partition, the parties were under an obligation to

furnish the stamp paper for drafting of the final decree and it is on

28.2.1972, the District Court. Nagapattinam in the erstwhile State of

Madras (presently Chennai issued notice to the parties to furnish stamp

papers and granting time till 17.3.1972. The records depict that the

decree-holder, in fact, did not furnish any stamp paper by reason where

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for, no decree was drafted or finalised The factual score further records

that the original decree-holder died on 17.1.1977 and it is on 26.7.1983

that an application was filed by the legal representatives of the decree-

holder to implead themselves as additional plaintiffs and on 23.2.1984, the

same was ordered and the legal representatives of the original plaintiff

were impleaded on 8.3.1984 and after incorporation of the names of the

legal heirs in the suit register, an execution application was presented

before the District Court on 21.5.1984.

To have the factual score complete on this count, be it noted that in the

mear while a Civil Revision Petition was filed before the High Court

(C.R.P. No.2374 of 1984) against the order of impleadment but the same

however, was dismissed on 8.10.1984

The records depict that on 11th December 1984, the execution petition was

dismissed with a finding that since the same was filed beyond twelve years,

the execution petition was barred by limitation. Subsequently, a Revision

Petition was filed against said order (C.R.P. No. 2000 of 1985) and on

10.3.1989, the High Court however did set aside the order of the executing

court and directed that the question of limitation should be considered

afresh. The records further depict that on 13th July, 1989, the District

Court held that the Execution Petition is not barred by limitation. As

against the order of the District Court dated 13th July, 1989, a Revision

Petition was filed before the High Court by the legal heirs of the first

defendant challenging the said finding and the learned Single Judge of the

High Court in a very detailed and elaborate judgment allowed the Civil

Revision Petition and set aside the order of the district court.

Consequently, the execution petition also stood dismissed and hence the

Special Leave Petition before this Court and the subsequent grant of leave

by this Court.

As noticed earlier in this judgment, Article 136 of the Limitation Act 1963

being the governing statutory provision, prescribes a period of twelve

years when the decree or order becomes enforceable. The word enforce in

common acceptation means and implies 'compel observance of (vide Concise

Oxford Dictionary) and the Black's Law Dictionary 'enforce' has been

attributed a meaning 'to give force or effect to; to compel obedience to'

and 'enforcement has been defined as 'the act or process of compelling

compliance with a law, mandate or command'. In ordinary parlance 'enforce'

means and implies 'compel observance'. Corpus Juris Secundum attributes the

following for the word 'enforce'.

"ENFORCE. Fn general, to cause to be executed or performed, to cause to

take effect, or to compel obedience to, as to enforce laws or rules; to

control; to execute with vigor; to put in execution; to put in force; also

to exact, or to obtain authoritatively. The word is used in a multiplicity

of ways and is given many shades of meaning and applicability, but it does

not necessarily imply actual force or coercion. As applied to process, the

term implies execution and embraces all the legal means of collecting a

judgment, including proceedings supplemental to execution.

The past tense or past participle "enforced" has been said to have the same

primary meaning as "compelled".

The language used by the legislature in Article 136 if read in its proper

perspective to wit: when the decree or order becomes enforceable must have

seen to clear up any confusion that might have arisen by reason of the user

of the expression 'the date of the decree or order which was used in the

earlier Act. The intention of the legislature stands clearly exposed by the

language used there n viz., to permit twelve year certain period from the

date of the decree or order. It is in this context that a decision of the

Calcutta High Court in the cast: of Biswapati Dev v. Kennsington Stores and

Ors., AIR (1972) Calcutta P2) wherein the learned Single Judge in no

uncertain terms expressed his opinion that there cannot be any ambiguity in

the language used in the third column and the words used therein to wit :

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'when the decree or order becomes enforceable' should be read in their

literal sense. 'We do feel it expedient to lend our concurrence to such an

observation of the learned Single Judge of the Calcutta High Court. The

requirement of the Limitation Act in the matter of enforcement of a decree

is the date on which the decree becomes enforceable or capable of being

enforced-what is required is to assess the legislative intent and if the

intent appears to be otherwise clear and unambiguous, question of

attributing a different meaning other than the literal meaning of the words

used would not arise. It is in this context, we also do feel it inclined to

record our concurrence to the observations of the full Bench of the Bombay

High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar, AIR

(1975) Bom. 244. The Full Bench in the decision observed :

"......it is the duty of the Court to interpret the language actually

employed and to determine the intention of the legislature from such

language and since there is no ambiguity about the language actually

employed, neither the recommendation of the Law Commission nor the a ms and

object as set out in the Statement of Objects and reasons can be brought in

and or can be allowed to influence the natural and grammatical meaning of

the Explanation as enacted by the Parliament".

Adverting however. In the merits of the matter at this juncture and for

consideration of the applicability of Article 136 in the way as stands

interpreted above, a short recapitulation of certain relevant dates seems

to be inevitable and as such the same is set out herein below

Date Event

8th June, 1969 The preliminary decree passed

in the partition suit.

20th November, 1970 Final decree passed upon

acceptance of the report of the Commission.

28th February, 1972 Notice to furnish stamp paper

on orbefore 17.3.1972 (be it noted that no stamp paper, in fact, was

furnished).

17th January, 1977 Original decree-holder died.

8th March, 1984 Legal representatives were

impleaded.

21st May, 1984 Execution petition filed with

the engrossed stamp paper furnished on 16.3.1984.

Probably one could avoid reference to a list of dates in the judgment, but

the same has been incorporated by reason of the peculiar fact-situation of

the appeal under consideration.

Article 136 of the Act of 1963 prescribes as noticed above, a twelve years

period certain and what is relevant for Article 136 is, as to when the

decree became enforceable and not when the decree became executable. The

decision of the Calcutta High Court in Biswapati's case (supra) has dealt

with the issue very succinctly and laid down that the word 'enforceable'

should be read in its literal sense. In the contextual facts, the final

decree upon acceptance of the report of the Commissioner was passed on

20.11.1970, while it is true that notice to furnish stamp paper was issued

on 28.2.1972 and the time granted was up to 17.3.1972 but that by itself

will not take it out of the purview of Article 136 as regards the

enforceability of the decree. Furnishing of stamped paper was an act

entirely within the domain and control of the appellant and any delay in

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the matter of furnishing of the same cannot possibly be said to be putting

a stop to the period of limitation being run-no one can take advantage of

his own wrong : As a matter of fact, in the contextual facts no stamp paper

was filed until 26.3.1984-Does that mean and imply that the period of

limitation as prescribed under Article 136 stands extended for a period of

twelve years from 26th March, 1984? The answer if it be stated to be in the

affirmative, would lead to an utter absurdity and a mockery of the

provisions of the statute. Suspension of the period of limitation by reason

of one's own failure cannot but be said to be a fallacious argument: though

however suspension can be had when the decree is a conditional one in the

sense that some extraneous events have to happen on the fulfillment of

which alone it could be enforced-furnishing of stamped paper was entirely

in the domain and power of the decree-holder and there was nothing to

prevent him from acting in terms therewith and thus it cannot but be said

that the dercee was capable of being enforced on and from 20th November,

1970 and the twelve years period ought to be counted therefrom. It is more

or less in identical situation, this Court even five-decades ago in the

case of Yeswant Deorao Deshmukh v. Watch and Ramchand Kothari, [1950] SCR

852 has stated :

'The decree was not a conditional one in the sense that some extaneous

event was to happen on the fulfilment of which alone it could be executed.

The payment of court fees on the amount found due was entirely in the power

of the decree-holder and there was nothing to prevent him from paying it

then and there; it was a decree capable of execution from the very date it

was passed.

Needless to record that engrossment of stamped paper would undoubtedly

render the decree executable but that does not mean and imply however, that

the enforceability of the decree would remain suspended until furnishing of

the stamped paper-this is opposed to the fundamental principle of which the

statutes of limitation are founded. It cannot, but be the general policy of

our law to use the legal diligence and this has been the consistent legal

theory from the ancient times. Even the doctrine of prescription in Roman

Law prescribes such a concept of legal diligence and since its

incorporation therein, the doctrine has always been favoured rather than

claiming dis-favour. Law courts never tolerate an indolent litigant since

delay defeats equity. The Latin maxim Vigilantibus non dormientibus jure

subventiunt' (law assists those who are vigilant and not those who are

indolent). As a matter of fact, lapse of time is a species for forfeiture

of right. Wood, V.C. in Manby v. Bewicke, (3 K. & J. 342 at 352) stated :

" ..the legislature has in this, as in every civilized country that has

ever existed, thought fit to prescribe certain limitations of time, after

which persons may suppose themselves to be in peaceful possession of their

property and capable of transmitting the estates of which they are in

possession, without any apprehension of the title being impugned by

litigation in respect of transactions which occurred at a distant period,

when evidence in support of their own title may be most difficult to

obtain."

Recently this Court in W. B. Essential Commodities Supply Corporation v.

Swadesh Agro Farming and Storage Pvt Ltd and Anr., [1999] 8 SCC 3 I 5 had

the occasion to consider the question of limitation under Article 136 of

the Limitation Act of 1963 and upon consideration of the decision in the

case of Yeshwant Deorao, (supra) held that under the scheme of the

Limitation Act, execution applications like plaints have to be presented in

court within the time prescribed by the Limitation Act. A decree-holder,

this court went on to record does not have the benefit of exclusion of the

time taken for obtaining even the certified copy of the decree like the

appellant who prefers an appeal, much less can he claim to deduct time

taken by the court in drawing up and signing the decree. In fine, this

Court observed that if the time is reckoned not from the date of the decree

but from the date when it is prepared, it would amount to doing violence to

the provisions of the Limitation Act as well as of Order 20 and Order 21

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Rule 11 C.P.C. which is clearly impermissible.

The observations thus in W.B. Essential Commodities Supply Corpn. (supra)

lends concurrence to the view expressed above pertaining to the question of

enforceability of the decree as laid down in Article 136 of the Limitation

Act.

Incidentally, in paragraph 12 of the judgment in W.B. Essential Commodities

Supply Corpn. (supra), this Court listed out three several situations in

which a decree may not be enforceable on the date it is passed and in last

of the situations, this Court observed :

"Thirdly, in a suit for partition of immovable properties after passing of

preliminary decree when, in final decree proceedings, an order is passed by

the court declaring the rights of the parties in the suit properties, it is

not executable till final decree is engrossed on non-judicial stamp paper

supplied by the parties within the time specified by the court and the same

is signed by the Judge and sealed. It is in this context that the

observations of this Court in Shankar Balwant Lokhande (dead) by Lrs. v.

Chandrakant Shankar Lokhande and Anr., [1995] 3 SCC 413 have to be

understood. These observations do not apply to a money decree and,

therefore, the appellant can derive no benefit from them".

The third situation, as referred above, has been taken note of, by reason

of the decision of this Court in the case of Shankar Balwant Lokhande

(dead) by Lrs. v. Chandrakant Shankar Lokhande and Anr., [1995] 3 SCC 413

wherein Ramaswamy, J. speaking for the Bench came to a conclusion that:

".....After final decree is passed and a direction is issued to pay

stamped papers for engrossing final decree thereon and the same is duly

engrossed on stamped paper(s), it becomes executable or becomes an

instrument duly stamped. Thus, condition precedent is to draw u a final

decree and then to engross it on stamped paper(s) of required value. There

two acts together constitute final decree crystallizing the rights of the

parties in terms of the preliminary decree. Till then, there is no

executable decree as envisaged in Order 20, rule 18 (2), attracting

residuary Article 182 of the old Limitation Act"

Be it noticed that Lokhande's decision (supra) was decided against the

judgment of the High Court recording a finding that limitation for

executing a final decree in a suit for partition starts on the date on

which the final decree is passed and not from any subsequent date on which

the parties supply the non-judicial stamp for engrossing the final decree

and when the court engrosses the final decree on The stamp paper and signs

it - this view of the High Court was negatived and this Court came to a

contra conclusion as noticed hereinbefore.

The W. B. Essential Commodities Supply Corpn.'s decision (supra) has been

rather cautious in recording certain situations in which a decree may not

be enforceable on the date it is passed (emphasis supplied). It is thus not

a pronouncement of law as such but an exception recorded in certain

situations, the words 'may not be' as emphasised are rather significant.

The word 'May' in common acceptation mean and imply-'a possibility'

depicting thereby availability of some fluidity and thus not conclusive.

This aspect of the matter is required to be clarified by reason of the

observations as laid down in the third situation (noticed above)-Needless

to record that the third situation spoken of by this Court in the decision

last noted obviously by reason of the judgment of this Court in Lokhande's

case (supra). The factual situation of Shankar B. Lokhande's case (supra)

however is completely different since there was 10 final decree at all but

only a preliminary decree. Paragraph 10 of the report at page 419 makes the

situation amply clear. Paragraph 10 reads as below :

"10. As found earlier, no executable final decree has been drawn working

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out the rights of the parties dividing the properties in terms of the

shares declared in the preliminary decree. The preliminary decree had only

declared the shares of the parties and properties were liable to be

partitioned in accordance with those shares by a Commissioner to he

appointed in this behalf. Admittedly, no Commissioner was appointed and no

final decree had been passed relating to all." Another significant feature

which would render the decision inapplicable in the contextual facts is the

consideration of the matter in the perspective of the 1908 Act (the old

Act) and not the Limitation Act of 1963. The language of Article 136 is

clear, categorical and unambiguous and it is the difficulty experienced in

the matter of interpretation of Article 182 "which has been a very fruitful

source of litigation", promoted incorporation of Article 136 in the Statute

Book. The recommendation of the Law Commission in the matter of

incorporation of Article 136 thus assumes a positive and a definite role.

Twelve year period certain has been the express opinion of the Commission

and by reason therefore Section 48 of the Code stands deleted from the main

body of the sections, which incidentlly provided for a twelve year period

certain for execution proceedings.

In this context, a further reference can be had from Mulla's Civil

Procedure Code. As regards Section 48 the following is said in Mulla's C.P.

Code :

"This Section has been repealed by Section 28 of the Limitation Act, 36 of

1963. In its place a new provision. Article 136, has been introduced which

prescribes "for the execution of any decree (other than a decree granting a

mandatory injunction) or order of any civil court" a period of twelve years

"where the decree or order becomes enforceable or where the decree or any

subsequent order directs any payment of money or the delivery of any

property to be made at a certain date or at recurrent periods, when default

in making the payment or delivery in respect of which execution takes place

:

Provided that an application for the enforcement or execution of a decree

granting a perpetual injunction shall not be subject to any period of

limitation."

The period of twelve years prescribed by Section 48 is retained under

Article 136 and is now the only period of limitation. It is therefore no

longer necessary to keep the execution alive by successive applicants

within three years for complying with the original Article 182."

Significantly, the contextual facts itself in Lokhande's case (supra) has

prompted this Court to pass the order as it has (noticed above) and as

would appear from the recording in the order, to wit : "Therefore,

executing court cannot receive the preliminary decree unless final decree

is passed as envisaged under Order 20 Rule 18(2)."

In that view of the matter, reliance on the decision of Lokhande's case

(supra) by Mr. Mani appearing for the appellants herein cannot thus but be

said to be totally misplaced, mote so by reason of the fact that the issue

pertaining to furnishing of stamp paper and subsequent engrossment of the

final decree thereon did not fall for consideration neither the

observations contained in the judgment could be said to be germane to the

issue involved therein. The factual score as noticed in paragraph 10 of the

Report, [1995] 3 SCC 413 makes the situation clear enough to indicate that

the Court was not called upon to adjudicate the issue as raised presently.

The observations thus cannot, with clue deference to the learned Judge, but

be termed to be an obiter dictum.

It is in this context that we rather feel it inclined to record the

observation of Russel L.J. in Rakhit v. Carty. (L.R. 1990 2 Q.B. 315)

wherein at page 326/ 327 of the report it has been observed :

"Miss Foggin has now submitted to this court that the decision in Kent's

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case was indeed per incuriam in that she submits that the judgment of

Ormrod L.J with which Dunn L.J and and Sir Sebag Shaw agreed, made no

reference to section 67 (3), that, if the Court of Appeal had been referred

to that subsection and had had regard to its terms, the decision would

plainly have been different and that consequently this court should not

follow Kent's case. I have already expressed my own views as to the proper

constitution of section 44(1) and the impact of section 67 (3).

In Richards v. Rickards. [1990] Fam. 194, 203 Lord Donaldson of Lymington

M.R. said :

"The importance of the rule of state decisis in relation to the Court of

Appeal's own decisions can hardly be overstated. We now sometimes sit in

eight divisions and, in the absence of such a rule, the law would quickly

become wholly uncertain. However the rule is not without exceptions, albeit

very limited These exceptions were considered in Young v Bristol Aeroplane

Co. Ltd., [1944] K.B. 718 : Morelle Ltd. v. Wakeling, [1955] 2 Q.B. 379 and

more recently, in Williams v. fawett, [1986] Q.B. 604, relevant extracts

from the two earlier decisions being set out at pp. 615-616 of the report.

These decisions show that this court is justified in refusing to follow one

of its own previous decisions to not only where that decision is given in

ignorance or forgetfulness of some authority binding upon it, but also, in

rare and exceptional cases, if it is satisfied that the decision involved a

manifest slip or error. In previous cases the judges of this court have

always refrained from defining this exceptional category and I have no

intention of departing from that approach save to echo the words of Lord

Greene M.R. in Young's case, p.729, and Sir Raymond Evershed M.R. in

Morelle's case, p. 406, and to say they will be of the rarest occurrence.

In my judgment, the effect of allowing this appeal will produce no

injustice to the plaintiff, for the Rent Act 1977 provided him and his

advisers with ample opportunity to protect his interests by the simple

process of inspecting the public register of rents before letting the flat

to the defendant. A fresh application for registration or a fair rent could

then have been made enabling that fair rent to be recoverable from the

commencement of the defandant's tenancy.

For my part, I am satisfied that this court erred in Kent v. Millmead

Properties Ltd., 44 p & C.R. 353 and that, following the observations of

Lord Donaldson of Lymington M.R. in Rickards' case, this court is justified

in declining to follow Kent's case.

As a matter of fact, a three Judge Bench of this Court in the case of

Municipal Committee, Amritsar v. Hazara Singh, [1975] 1 SCC 794 has been

pleased to record that on facts, no two cases could be similar and the

decision of the court which was essentially on question of facts could not

be relied upon as precedent, for decision of the other cases. Presently the

fact situation in the decision of Lokhande (supra) and the matter under

consideration are completely different, as such the decision in Lokhande

cannot by any stretch be termed to be a binding precedent. In M/s. Amarnath

Om Prakash and Ors. v. State of Punjab & Ors., [1985] 1 SCC 345, a three

Judges bench of this Court in no uncertain terms stated :

"...We consider it proper to say, as we have already said in other cases,

that judgments of courts are not to be construed as statutes. To interpret

words, phrases and provisions of a statute, it may become necessary for

Judges to embark into lengthy discussions but the discussion is meant to

explain and not to define. Judges interpret statutes, they do not interpret

judgments. They interpret words of statutes their words are not to be

interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, [1951

AC 737-761], Lord MacDermott observed : The matter cannot, of course, be

settled merely by treating the ipsissima verba of Wills. J., as though they

were part of an Act of Parliament and applying the rules of interpretation

appropriate thereto. This is not to detract from the great weight to be

given to the language actually used by that most distinguished Judge,....

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In Home Office v. Dorset Yacht Co. Ltd, (1970) 2 All ER 294 Lord Reid said

:

Lord Atkin's speech (Donoghue v. Stevension, 1932 All ER Rep I, II)....is

not to be treated as if it was a statutory definition. It will require

qualification in new circumstances.

Megarry, J. in (1971) 1 WLR 1062 observed :

One must not, of course, construe even a reserved judgment of even Russell,

L.J. as if it were an Act of Parliament.

And, in Herrington v. British Railways Board [(1972) 2 WLR 537], Lord

Morris said :

There is always peril in treating the words of a speech or a judgment as

though they were words in a legislative enactment and it is to be

remembered that judicial utterances are made in the setting of the facts of

a particular case."

Further in Municipal Corporation of Delhi v. Gurnam Kaur, [1989] 1 SCC 101,

this Court in Paragraph 11 of the report observed,

"11. Pronouncements of law, which are not part of the ratio decidendi are

classed as obiter dicta and are not authoritative. With all respect to

learned Judge who passed the order in Jamna Das case (Writ Petition Nos.

981-82 of 1984) and to the learned Judge who agreed with him, we cannot

concede that this Court is bound to follow it. It was delivered without

argument, without reference to the relevant provisions of the Act

conferring express power on the Municipal Corporation to direct removal of

encroachments from any public place like payments or public streets, and

without any citation of authority. Accordingly, we do not propose to uphold

the decision of the High Court because, it seems to us that it is wrong in

principle and cannot be justified by the terms of the relevant provisions.

A decision should be treated as given per incuriam when it is given in

ignorance of the terms of a statute or of a rule having the force of a

statute. So far as the order shows, no argument was addressed to the court

on the question whether or not any direction could properly be made

compelling the Municipal Corporation to construct a stall at a pitching

site of a payment squatter. Professor P.J. Fitzgerald, editor of the

Salmond on Jurisprudence, 12th Edn. Explains the concept of sub silentio at

p. 153 in these words :

A decision passes sub silentio, in the technical sense that has come to be

attached to that phrase. When the particular point of law involved in the

decision is not perceived by the court or present to its mind. The court

may consciously decide in favour of one party because of point A, which it

considers and pronounces upon. It may be shown, however, that logically the

court should not have decided in favour of the particular party unless it

also decided point B in his favour : but point B was not argued or

considered by the court. In such circumstances, although the case had a

specific outcome, the decision is not an authority on point B. Point B is

said to pass sub silentio."

In one of its latest judgment however this Court in Dr. Vijay Laxmi Sadho

v. Jagdish, [2001] 2 SCC 247, though apparently sounded a contra note but

the safeguards introduced therein, does not however create any problem for

a decision in the matter under consideration. Anand, C..I. while

deprecating the characterisation of earlier judgment as 'per incuriam' on

ground of dissent observed :

"that a Bench of coordinate jurisdiction ought not to record its

disagreement with another Bench on a question of law and it would be rather

appropriate to refer the matter to a larger Bench for resolution of the

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issue."

Anand, C.J. however, has been extremely careful and cautious enough to

record "it is appropriate that the matter be referred to a larger Bench for

resolution of the issue rather than to leave two conflicting judgments to

operate creating confusion" (emphasis supplied).

In the contextual facts, the question of there being a conflicting judgment

as indicated hereinbefore or creation of any confusion does not and cannot

arise by reason of the fact that the observations in Lokhande (supra) were

the peculiar set of facts under the Limitation Act of 1908 - no

Commissioner's report was available, neither any final decree passed, as

such the issue before the court was completely different having regard to

the factual state of the matter.

The decision has thus no manner of application in the contextual facts

neither the decision of this Court in W. B. Essential Commodities supply

Corpn., (supra) be of any assistance since there was no expression of law

but a mere expression of a possibility only, as such at best be termed to

be an expression of opinion incidently. The latter decision thus also does

not render any assistance to the submission of Mr. Mani rather lends

credence to the observations of this Court as noticed hereinbefore.

Incidentlly, the Calcutta High Court in one of its very old decision in the

case of Kishori Mohan Pal v. Pravash Chandra Mondal and Ors., AIR (1924)

Calcutta 351 while interpreting Article 182 under the Limitation Act of

1908 has seen rather categorical in recording that the date of the decree

under the Article is the day on which the judgment is pronounced and

limitation begins to run from that day although no formal decree can be

drawn up in a partition suit until paper bearing a proper stamp under

Article 45 of the Stamp Act is supplied to the Court. Richardson, J. with

his usual felicity of expression stated as below :

"In this Court the learned Vakil for the respondents has said all that

could be said for his clients. He has in particular called our attention to

the fact that, although the decree is dated the 25th March 1914, it is

expressed to be "passed in terms of Commissioner's report dated the 27th

June 1914 which and the map filed along with it do form parts of the

decree." The 25th March 1914 is, nevertheless, the correct date of the

decree because that is the day on which the judgment was pronounced (order

20, rule 7, Civ. Pro. Code). The report of the Commissioner appointed to

make the partition had already been received, the report was adopted by the

judgment subject to certain variations and, in connection with those

variations, certain directions of a ministerial character were given to the

Commissioner which the Commissioner had merely to obey. The order sheet

shows that the Commissioner submitted a report on the 27th June 1914. That

report has not been placed before us. But I have no doubt that it did no

more than state that the Commissioner had done what he was directed to do

by the judgment of the 25th March 1914. That judgment was the final

judgment in the suit and it was so regarded by the Subordinate Judge who

delivered it. The decree is in accordance therewith. The directions in the

judgment were sufficient to indicate how the decree should be framed, and

there was no need of any further judgment.

The delay in signing the decree was due not to any fault of the Court or to

any cause beyond the control of the parties but solely to the delay of the

parties in supplying the requisite stamped paper. Any party desiring to

have the decree executed might have furnished the stamped paper at any time

leaving the expense of providing it to be adjusted by the Court in

connection with the costs of the execution.

The circumstances disclose no ground for saying that limitation did not run

from the date of the decree as provided by article 182 of the Limitation

Act, and if authority be needed, reference may be made to Go/am Gaffar

Mandal v. Golijan Bibi, (1898) 25 Cal. 109 and Bhajan Behari Shaha v.

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Girish Chandra Shaha, (1913) 17C.W.N.959.

I may add that much time and labour would be saved if the court would

resist such attempts as the present to go behind the plain words of a

positive enactment."

Though several other old and very old decisions were cited but in view of

the pronouncement lately by this Court and as discussed herein before, we

are not inclined to deal with the same in extenso, save however recording

that contra view recorded earlier by different High Courts cannot be termed

to be good law any longer.

The decision in Lokhande's case (supra) cannot but be said to be on the

special facts situation and is thus in any event clearly distinguishable.

Be it noted that the legislature cannot be sub-servant to any personal whim

or caprice. In any event, furnishing of engrossed stamp paper for the

drawing up of the decree cannot but-be ascribed to be a ministerial act,

which cannot possibly put under suspension a legislative mandate. Since no

conditions are attached to the decree and the same has been passed

declaring the shares of the parties finally, the Court is not required to

deal with the matter any further - what has to be done - has been done. The

test thus should be - Has the court left out something for being

adjudicated at a later point of time or is the decree contingent upon the

happening of an event -i.e. to say the Court by its own order postpones the

enforceability of the order - In the event of there being no postponement

by a specific order of Court, there being a suspension of the decree being

unenforceable would not arise. As a matter of fact, the very definition of

decree in Section 2(2) of C.P. Code lends creoence to the observations as

above since the term is meant to be 'conclusive determination of the rights

of the parties.'

On the next count Mr. Mani in support of the appeal very strongly contended

that question as to when a decree for partition becomes enforceable cannot

be decided in any event without reference to relevant provisions of Stamp

Act. since a decree for partition is also an instrument of partition in

terms of Section 2 (15) of the Indian Stamp Act 1899. For convenience sake,

Section 2(15) reads as below :

"2 Definitions.....In this Act, unless there is something repugnant in

the subject or context-

15. "Instrument of partition" means any instrument whereby co-owners of any

property divide or agree to divide such property in severally, and includes

also a final order for effecting a partition passed by any revenue-

authority or any Civil Court and an award by an arbitrator directing a

partition."

At the first blush, the submissions seem to be very attractive having

substant al force but on a closer scrutiny of the Act read with the

Limitation Act, the same however pales into insignificance. Before

detailing out the submiss ons of Mr. Mani on the second count pertaining to

the Stamp Act we ought to note Section 35 of the Stamp Act at this

juncture. Section 35 records that "no instrument chargeable with duty shall

be admitted in evidence for any purpose by any person having by law or

consent of parties authority to receive evidence, or shall be acted upon,

registered or authenticated by any such person or by any public officer,

unless such instrument is duly stamped". Mr. Mani in continuation of his

submission, however contended that a plain reading of the Section 35 would

depict that the same creates a three-fold bar in respect of unstamped or

insufficiently stamped document viz.

I. That it shall not be received in evidence.

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II. That it shall not be acted upon;

III. That it shall not be registered or authenticated

And it is on this score, it has been contended that the partition decree

thus even though already passed cannot be acted upon, neither becomes

enforceable unless drawn up and engrossed on stamp papers. The period of

limitation, it has been contended in respect of the partition decree cannot

begin to run till it is engrossed on requisite stamp paper. There is thus,

it has been contended a legislative bar under Section 35 of the Indian

Stamp Act for enforceability of partition decree. Mr. Mani contended that

enforcement includes the whole process of getting an award as well as

execution since execution otherwise means due performance of all

formalities necessary to give validity to a document. We are however unable

to record our concurrence therewith. Prescription of a twelve year certain

period cannot possibly be obliterated by an enactment wholly unconnected

therewith. Legislative mandate as sanctioned under Article 136 cannot be

kept in abeyance unless the self same legislation makes a provision

therefor. It may also be noticed that by the passing of a final decree, the

rights stand crystalised and it is only thereafter its enforceability can

be had though not otherwise.

As noticed above the submission of Mr. Manu apparently seemed to be very

attractive specially in view of the decision in Lokhande's case (supra). In

Lokhande's case as noted above, this Court was not called upon to decide

the true perspective of Article 136 of the Act of 1963 rather decided the

issue in the peculiar fact situation of the matter on the basis of the

Limitation Act of 1908 and in particular, Article 182. This Court was

rather specific on that score and it is on that score only that the Andhra

Pradesh High Court's Judgment in Smt. Kotipalli Mahalakshmamma v. Kotipalli

Ganeswara Rao & Ors., AIR (I960) A.P. 54 was said to be the correct

exposition of law. Article 136 however has a special significance and a

very wide ramification as noted above and as such we need not dilate

therefore any further.

Turning attention on to Section 2(15) read with Section 35 of the Indian

Stamp Act, be it noted that the Indian Stamp Act, 1899 (Act 2 of 1899) has

been engrafted in the Statute Book to consolidate and amend the law

relating to stamps. Its applicability thus stands restricted to the scheme

of the Act. It is a true fiscal statute in nature, as such strict

construction is required to be effected and no liberal interpretation.

Undoubtedly, Section 2(15) includes a decree of partition and Section 35 of

the Act of 1899 lays down a bar in the matter of unstamped or insufficient

stamp being admitted in evidence or being acted upon-but does that mean

that the prescribed period shall remain suspended until the stamp paper is

furnished and the partition decree is drawn thereon and subsequently signed

by the Judge? The result would however be an utter absurdity; As a matter

of fact if somebody does not wish to furnish the stamp paper within the

time specified therein and as required by the Civil Court to draw up the

partition decree or if someone does not at all furnish the stamp paper,

does that mean and imply, no period of limitation can said to be attracted

for execution or a limitless period of limitation is available. The intent

of the legislature in engrafting the Limitation Act shall have to be given

its proper weightage. Absurdity cannot be the outcome of interpretation by

a court order and wherever there is even possibility of such absurdity, it

would be a plain exercise of judicial power to repel the same rather than

encouraging it. The whole purport of the Indian Stamp Act is to make

available certain dues and to collect revenue but it does not mean and

imply, overriding the effect over another statute operating on a completely

different sphere.

Let us examine the matter from another perspective. Limitation Act has been

engrafted in the Statute Book in the year 1963 and the Indian Stamp Act has

been bought into existence by the British Parliament in 1899 though,

however, the Government of India Adaptation of Indian Laws Order 1937, the

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Indian Independence Adoptation of Central Acts and Ordinance Order 1948 and

the Adoptation of Laws Order 1950 allowed this fiscal statute to remain on

the statute book. The legislature while engrafting 1963 Act, it is presumed

and there being a golden canon of interpretation of statutes, that it had

in its mind the existing Indian Stamp Act before engrafting the provisions

under Article 136. A latter statute obviously will have the effect of

nullifying an earlier statute in the event of there being any conflict

provided however and in the event there is otherwise legislative competency

in regard thereto. As regards the legislative competency, there cannot be

any doubt which can stand focussed neither there is any difficulty in

correlating the two statutes being operative in two different and specified

spheres. Enforceability of the decree cannot be the subject matter of

Section 35 neither the limitation can be said to be under suspension. The

heading of the Section viz., "Instrument not duly stamped inadmissible in

evidence etc", (emphasis supplied) itself denotes its sphere of

applicability : it has no relation with the commencement of period of

limitation. As noticed above 'executability' and 'enforceability' are two

different concepts having two specific connotation in legal parlance. They

cannot be termed as synonymous, as contended by Mr. Mani nor they can be

attributed one and the same meaning. Significantly, the final partition

decree, whenever it is drawn bears the date of the decree when the same was

pronounced by Court and not when it stands engrossed on a stamp paper and

signed by the judge and this simple illustration takes out the main thrust

of Mr. Mani's submission as regards the applicability of the Stamp Act

visa-vis the enforceability of the decree. The decree may not be received

in evidence nor it can be acted upon but the period of limitation cannot he

said to remain under suspension at the violation and mercy of the litigant.

Limitations starts by reason of the statutory provisions as prescribed in

the statute. Time does not stop running at the instance of any individual

unless, of course, the same has a statutory sanction being conditional, as

more fully noticed hereinbefore; the Special Bench decision of the Calcutta

High Court in the case of Bholanath Karmakar and Ors. v. Madanmohan

Karmakar, (AIR 1988 Calcutta I), in our view has completely misread and

misapplied the law for the reasons noted above and thus cannot but be said

to be not correctly decided and thus stands overruled. Undoubtedly, the

judgment of the Calcutta High Court has been a very learned judgment but

appreciation of the legislative intent has not been effected in a manner

apposite to the intent rather had a quick shift therefrom by reason

wherefor, the Special Bench came to a manifest error in recording that the

period of limitation for execution of a partition decree shall not begin to

run until the decree is engrossed on requisite stamp paper.

On the wake of the aforesaid we are unable to record an affirmative support

to Mr. Mani's submission that Section 35 read with Section 2(15) of the

Indian Stamp Act 1899 would over-run the Limitation Act of 1963 and thus

give a complete go-bye to the legislative intent in the matter of

incorporation of Article 136.

The appeal, therefore, fails and is dismissed. No order as to costs.